Teamsters Local 812 (Sound Distributing)

National Labor Relations Board - Board Decisions

Jul 13, 1992

307 N.L.R.B. 1267 (N.L.R.B. 1992)

1267
307 NLRB No. 191
TEAMSTERS LOCAL 812 (SOUND DISTRIBUTING)
1 The name of the Respondent has been changed to reflect the new
official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We note that the complaint was amended at the hearing to allege
that the Employer is engaged in the nonretail distribution of beer and
alcoholic beverages, not soft drinks. The Employer admitted the
amended allegation.
We reject the Respondent’s contention that there is no evidence
that the Union or any of its members placed the ‘‘tire jacks’’ in the
road. (Tire jacks are two nails welded together to form spikes, simi-
lar to caltrops.) Rather, we find that as in Teamsters Local 812
(Pepsi-Cola Newburgh), 304 NLRB 111 fn. 1 (1991), which in-
volved similar conduct by the same Local Union during the same
period of time, the judge reasonably inferred from the strong cir-
cumstantial evidence that picketing union members placed the tire
jacks on Electra Lane. In finding that the Respondent was respon-
sible for the tire jacks, we also rely on the judge’s findings regarding
the October 17, 1989 incident during which, in the presence of union
agents, pickets Lugo and Coste threatened and assaulted driver Davis
as he was leaving the Employer’s facility. In particular, the judge
found that as Davis attempted to remove tire jacks from the road,
Lugo said, ‘‘I’ll kill you, give me them tire jacks, you took my
job.’’
In view of the evidence that union agents were present on the
picket line when the acts of misconduct occurred, Chairman Ste-
phens and Member Devaney find it unnecessary to pass on the
judge’s reliance on Avis Rent-a-Car System, 280 NLRB 580 fn. 3
(1986). See Member Devaney’s concurring and dissenting opinion in
Pepsi-Cola Newburgh, above.
We note that no exceptions were filed to the other findings and
dismissals by the judge.
1 Allegations against the Employer in Case 2–CA–23864 were set-
tled at the outset of the hearing. As a result, that case was severed
from the present case.
Soft Drink Workers Union Local 812, International
Brotherhood of Teamsters, AFL–CIO1 and
Sound Distributing Corp. Case 2–CB–12968
July 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 27, 1992, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Soft Drink Workers Union
Local 812, International Brotherhood of Teamsters,
AFL–CIO, Scarsdale, New York, its officers, agents,
and representatives, shall take the action set forth in
the Order.
Randy Girer, Esq., for the General Counsel.
Sidney Fox, Esq. (Shapiro, Shiff, Beilly, Rosenberg & Fox),
for the Union.
Joseph Baumgarten, Esq. (Proskauer Rose Goetz &
Mendelsohn), for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on various dates in 1991.
The charge and amended charge in Case 2–CB–12968 were
filed on September 22 and November 2, 1989. Thereafter a
consolidated complaint and notice of hearing was issued on
January 31, 1991.1 In substance the complaint made the fol-
lowing allegations:
1. Commencing on August 11, 1989, the Union picketed
the employer.
2. On or about August 11, 1989, union pickets drove a
car in front of two company trucks in a reckless and dan-
gerous manner.
3. On or about August 11, 1989, the Union (by a striking
employee) threatened nonstrikers with unspecified reprisals
in New Rochelle.
4. On or about August 11, 1989, the Union, by strikers
Jose Coste and Ralph Cotto, blocked egress of a truck from
the Employer’s plant; banged on the door; removed beer bar-
rels from the truck and threatened the truck’s occupants with
physical violence.
5. In or about early August 1989, date unknown, the
Union, by unidentified agents, blocked ingress and egress to
the Employer’s plant thereby slowing down progress of com-
pany vehicles.
6. In or about early August 1989, date unknown, the
Union, by unidentified agents, placed metal spikes on Electra
Lane which is the road leading to the Employer’s facility.
7. On or about August 25, 1989, the Union, by unidenti-
fied agents, shot unidentified missiles through a truck win-
dow.
8. On or about September 22, 1989, near 241st Street, the
Union by strikers Wilfredo Lugo, Larry Williams, and other
agents, kicked and slapped a nonstriking employee and chal-
lenged him to a fight.
9. On or about September 22, 1989, near 241st Street, the
Union by Wilfredo Lugo, Larry Williams, and other agents,
slashed tires on a vehicle owned by a nonstriker and bran-
dished a knife at a nonstriker.
10. On or about September 22, 1989, the Union, by un-
identified agents, threw rolled up newspapers at a car win-
dow.
11. On or about September 22, 1989, the Union, by un-
identified agents, brandished bats and sticks and ran in men-
acing manner toward nonstrikers.
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Frankly, I see nothing wrong with a union affording legal de-
fense to employees who are charged with crimes in connection with
picketing, particularly where the alleged acts are denied by the re-
spective defendants.
12. In September 1989, the Union, by unidentified agents,
threw rocks at a truck.
13. On or about September 22, 1989, the Union, by Nick
Pretino and other agents, brandished metal pipes and chal-
lenged nonstrikers to a fight.
14. On or about October 6, 1989, the Union, by unidenti-
fied agents, threw rocks at nonstrikers and threatened them
with unspecified reprisals.
15. On or about October 17, 1989, the Union, by unidenti-
fied agents, threatened to kill a nonstriker.
16. On or about October 17, 1989, the Union, by Wilfredo
Lugo and Jose Costa, assaulted a nonstriker on a truck, chal-
lenged him to fight, and threatened to kill him.
17. On or about October 18, 1989, the Union, by Jose
Costa, at Manhattan College, drove his car toward a non-
striker so as to hit him with his side view mirror.
18. On or about October 18, 1989, the Union, by Nick
Pretino and others, threatened nonstrikers with unspecified
reprisals at various locations.
19. On or about October 18, 1989, the Union, by Nick
Pretino and others, pushed nonstrikers out of the way and
stepped in front of them while they attempted to talk with
the Company’s customers.
20. On or about October 18, 1989, the Union, by Nick
Pretino and others, at a Waldbaums, threatened to kill a secu-
rity guard of the Company. (In her brief, the General Coun-
sel withdrew this allegation as no evidence was produced to
support it.)
21. On or about October 19, 1989, the Union, by Nick
Pretino and others, at 241st Street, brandished bats, slammed
a door on nonstrikers who drove a truck, and hit a truck
windshield with a bat.
22. On or about October 19, 1989, the Union, by unidenti-
fied agents, threw objects at the Company’s trucks.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that Sound Distrib-
uting Corp. is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The Union
also concedes that it is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The employer (Sound) is engaged in the wholesale dis-
tribution of beer and soft drinks. It operates three warehouses
and employs people to deliver these products to various retail
establishments mainly in the Bronx and Westchester. One of
the three warehouses is located at Electra Lane in Yonkers,
New York, and all the alleged misconduct occurred in rela-
tion to employees located at or working out of that location.
The Respondent and Sound have had a collective-bar-
gaining relationship since the 1950s wherein the truckdrivers
and warehousemen have been represented by the Union.
There are about 45 to 50 employees in the bargaining unit.
The last contract expired on July 31, 1989, and after negotia-
tions failed to result in an agreement, the Union commenced
a strike on August 10, 1989. The strike was still in progress
at the time of the hearing in this matter as no new contract
had yet been reached.
In relation to the picketing, the Union’s shop steward,
Robert Delmonico, was designated as the strike coordinator
and he in turn named three picket captains; Corado Petrilla,
Cornell Yarborough, and Ralph Cotto, all of whom are strik-
ing employees. From time to time, union delegates Tommy
Rosano and Ted Hutchinson also were present at the picket
line. (Hutchinson retired in January 1990.) Picketing was car-
ried out 7 days per week and on a 24-hour basis except for
Saturday night. In addition to placing a picket line at the em-
ployer’s facility at Electra Lane, the evidence shows that the
Union engaged in handbilling of Sound’s customers. This ac-
tivity involved, at least on some occasions, pickets being dis-
patched in cars to follow Sound’s trucks and distributing
handbills urging its customers not to buy from Sound.
All strikers who engaged in picket line duty received $55
per week from the International Union. No one had their
strike benefits cut off or reduced on account of any alleged
misconduct attributed to them. Also the evidence shows that
no person was disciplined by the Union because of alleged
strike misconduct. On the contrary, the Union vigorously and
successfully defended all strikers who were charged with
criminal misconduct.2 There was, however, some evidence to
suggest that one person who engaged in picketing and who
was not a Sound employee was sent away from the picket
line after he was involved in an alleged incident.
At the outset of the picketing the Union gave instructions
to the strikers which emphasized that the picketing should be
carried out in a peaceful manner.
The Employers for its part, immediately hired strike re-
placements. It also hired a security guard service to protect
its facilities and to protect the replacements as they made de-
liveries to the Company’s customers. As part of its defensive
actions, the Employer, through the security firm, placed a
video camera which was used to surveil Electra Lane at all
times relevant to this case. According to one of the security
employees (Rosando Perez), the video camera was manned
24 hours per day, was capable of recording by the light from
the street lamps, and was turned on whenever a person or ve-
hicle entered or left Electra Lane. Despite several allegations
of misconduct taking place at Electra Lane, video taped pic-
tures were offered only as to an incident that took place on
October 17, 1989.
Also by way of background, it is noted that this same
Union at an unrelated company was found to have violated
Section 8(b)(1)(A) in the summer of 1989, by engaging in
conduct which was contemporaneous with and in certain in-
stances very similar to that alleged in the present case. Thus
in Teamsters Local 812 (Pepsi-Cola Newburgh), 304 NLRB
111 (1991), Administrative Law Judge Barry Morris held
that the Union, at the picket line, was responsible for uniden-
tified persons who placed nails (which were identical to the
type involved in the present case) in the road leading to the
plant and thereby caused flat tires. He also found that the
1269TEAMSTERS LOCAL 812 (SOUND DISTRIBUTING)
3 I have no doubt that Costanza’s prior court testimony should be
admitted as an exception to the hearsay rule because that proceeding
involved the same parties, had essentially the same issues, and the
Respondent had the same opportunity and interest in cross-exam-
ining him. Ohio v. Roberts, 448 U.S. 56 (1980). On the other hand,
I doubt very much whether the affidavit that Costanza gave to the
Board agent during the investigation should have been received, or
if received, given any weight. Although I have absolutely no doubt
as to the reliability of the Board agent (who has no interest in the
outcome of the case), it is the declarant’s and not her reliability that
is at issue. In the absence of any opportunity by the Respondent to
cross-examine the witness, and absent a showing that he is deceased
(see for example Fenetrol Inc., 256 NLRB 796, 804 (1982)), I do
not think that Costanza’s unavailability for unknown reasons, suffi-
ciently outweighs the hearsay objection to his affidavit, in so far as
that affidavit is offered affirmatively to prove the truth of the asser-
tions and allegations made against the Respondent.
For other cases dealing with Rule 804 see Doral Building Serv-
ices, 266 NLRB 1215 (1983) (affidavits received in a representation
case); Host Services, 263 NLRB 672 (1982) (respondent’s offer of
unemployment hearing testimony rejected because no showing that
witness unavailable); K & K Transportation Corp., 254 NLRB 722,
733 (1981) (affidavit rejected where General Counsel failed to prove
unavailability).
Union, after assigning strikers to follow trucks, was liable for
the acts of a striker who drove his car in such a way as to
impede a truck’s progress and to create a driving hazard.
(The driver placed his car in front of the truck and constantly
braked his vehicle.)
B. The Alleged Misconduct
There were several incidents alleged in the complaint
which were based on the evidence given by a strike replace-
ment, Steven Costanza. The General Counsel contends that
on or about August 12, 1991, strikers threw rocks and debris
at Costanza as he walked to work. The second allegedly took
place on October 18, 1991, on Broadway in the Bronx where
striker Jose Coste allegedly ran into him with his car. The
third involved a situation during the same day when strikers,
in their effort to hand leaflets out, allegedly pushed Costanza
aside as he was making a delivery to a customer. The fourth
involves an alleged attack by certain strikers with baseball
bats on a company truck in which Costanza was a passenger.
I shall recommend that all these allegations be dismissed for
the following reasons.
Costanza did not testify in this hearing despite the efforts
of the General Counsel to enforce a subpoena that probably
was served on him. (On March 26, 1991, the United States
District Court issued an order requiring Costanza to testify
in this case.) As it appeared that Costanza was not available
within the meaning of Section 804 of the Federal Rules of
Evidence, I admitted into evidence, pursuant to Rule
804(b)(2), certain prior testimony that he had given in a state
court proceeding involving the same parties and an affidavit
that he had give to a Board agent during the investigation
of the case.3
Notwithstanding the fact that I accepted into evidence Co-
stanza’s prior testimony and a prior affidavit, the incidents
he described all took place when other nonstrikers were
present. Therefore, there were other corroborative witnesses
who were available but who were not called by either the
General Counsel or the Charging Party. This is contrasted to
the live witnesses who were called by the Respondent, were
subjected to cross-examination, and who effectively denied
Costanza’s allegations. Moreover, the Respondent introduced
into evidence another affidavit that Costanza had given to the
Union wherein he retracted a significant portion of his asser-
tions against employee Jose Coste.
John Kuehn, a sales supervisor, testified that on August 11
at 7:30 a.m. he went on delivery truck with employee Fabio
Fernandez and a guard when Tim Mahon and Jose Coste,
two of the strikers, blocked the road leading from the ware-
house on Electra Lane with their vehicles. Kuehn testified
that when the truck stopped Coste banged on the window,
tried to open the door, and said that he was going to get
them and kill them. According to Kuehn, Ralph Cotto (a
picket captain) jumped onto the running board on the pas-
senger side and knocked three beer barrels off the truck.
Despite the video surveillance, no pictures were offered
into evidence by the General Counsel or the Charging Party.
Kuehn states that this incident happened where Electra Lane
turns into McQueston Parkway and may therefore have been
too far to take pictures. The other two people in the truck
were not called as witnesses.
Jose Coste, a striker, testified that he was present at the
picket line on August 11 and did not see any incident involv-
ing Cotto and beer barrels. Coste denied jumping on the
truck’s running board, banging on a window, or making any
threats against the truck’s occupants. The Respondent did
not, however, call Cotto or Mahon to testify regarding these
alleged incidents.
Kuehn also testified that on August 11, 1989, while on
route with a driver and a guard, strikers Tim Mahon and
David Robinson drove their vehicles in front of his truck and
began to brake so as to impede the truck’s progress. Kuehn
states that the two strikers followed his truck into a parking
lot on Central Avenue where he was going to make a deliv-
ery. He states that after driving around in the parking lot for
a while, the security guard called a police car over, where-
upon Robinson took off. Kuehn states that the police officer
‘‘asked Mahon what he was doing and told him to stop
harassing us or risk arrest.’’ Neither Mahon nor Robinson
testified in this proceeding.
Edward Vogel, an independent truckdriver, also testified to
similar types of braking conduct by striker’s vehicles after
they followed him from the plant. He testified that there
were about five or six incidents of this nature in August
1989, usually occurring in Yonkers after he left Sound’s
warehouse at 11 a.m. He testified that on a couple of occa-
sions the vehicles were driven by John and Cornell
Yarborough. (Cornell Yarborough was a picket captain.) Nei-
ther of these individuals testified.
Howard Honigman, a sales manager, testified that on Au-
gust 11, 1989, he accompanied driver Bill Czacka and a se-
curity guard in one of the Company’s trucks. He states that
while on Central Avenue he was was passed by two cars
which proceeded to make quick stops in front of the truck.
According to Honigman, the people in the cars were striker
Tim Mahon and someone named Skip who was never identi-
fied as a striker, union agent, or picket. According to
Honigman, when the truck reached its destination, the two
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Honigman signed an affidavit dated August 19, 1989, which re-
lated a number of incidents. It did not, however, relate the incident
on Central Avenue on August 11.
men following them handed out leaflets to the customer.4
Neither Mahon nor ‘‘Skip’’ testified in this proceeding.
Rosando Perez, a security guard, testified that on August
11, 1989, he was on delivery truck with two company em-
ployees, Mike McCabe and Frank Falzone. He states that
when they arrived at a customer at about 10 a.m. Peter
Mahon, with two other unidentified strikers, said that wheth-
er it takes a day, a year, or a month, Mahon was going to
get those guys. Perez also states that Mahon said that he was
going to be around when they went home at night. (Peter
Mahon did not testify.)
Edward Vogel testified that some time in August 1989
(date unknown) as he drove his rig into Electra Lane at 3
a.m., his front window was hit with a bb shot which caused
the window to break when his rig hit the next bump in the
road. Vogel did not see who did this and states that the po-
lice officers who were at scene neither apprehended anyone
nor found any gun. He states that although he doesn’t know
the names of two of the three pickets present, one was a man
named Mikey whom Vogel believes was a striker but not a
union official.
George Muniz testified that on September 22, 1989, at
about 9 a.m., he drove with Jose and Carlos Rodriguez (all
nonstrikers) to 241st and White Plains Road where they
stopped to get some food at a delicatessen. He states that one
of the strikers (a man he can’t identify) came up to Jose and
said: ‘‘Do you have a problem with me,’’ which elicited
Jose’s response: ‘‘No, do you have a problem with me?’’ At
that point according to Muniz, the unidentified man slapped
Jose in the face and two other strikers, Wilfredo Lugo and
Larry Williams, arrived on the scene. According to Muniz,
Lugo and Larry Williams took out knives, whereupon Carlos
went back to the car and got out a tire iron. Muniz testified
that there was a face off but that Lugo slashed one of Jose’s
tires and that the unidentified striker kicked Jose twice before
they returned to the plant. He states that they drove fast and
went through a puddle on Electra Lane, splashing the strik-
ers. According to Muniz, when he, Carlos, and Jose reached
the plant and got out of the car some of the strikers moved
toward them, brandishing bats, sticks, and pipe whereupon
Carlos got out of the car with a golf club in his hand. (The
testimony of Muniz was not corroborated by either Jose or
Carlos Rodriguez.)
In relation to the incident at the delicatessen on 241st
Street, Muniz testified that the person who slapped him did
not appear at the picket line for several months after Sep-
tember 22, thereby leaving the implication that the Union
had him removed from the picket line activity. Also, Muniz’
affidavit is somewhat different from his testimony on direct,
particularly insofar as whether Lugo first pulled out a knife
or Carlos first pulled out a tire iron. In an affidavit Muniz
gave on October 5, he stated:
When we got out of the car to go into the grocery the
striker we had previously seen came up to Jose and said
in Spanish ‘‘do you have a problem with me.’’ Jose re-
sponded, no do you have a problem with me. The strik-
er then slapped Jose across the face. At that moment,
two other individuals, whose names I do not know, but
I also recognized as striking employees of Sound Dis-
tributing came out of a nearby store and approached
me. The two individuals challenged Carlos to move
away from the car and fight. When Carlos took a tire
jack out of the car, to defend himself, one of the strik-
ers took out a knife. Carlos moved away from the car,
at which point one of the two individuals slashed one
of tires with his knife.
The Respondent called Wilfredo Lugo to testify as to the
events at the delicatessen on September 22. He testified that
he went with Tommy Rivera and Alex Rosario to a coffee-
shop where they met strikers David Robinson and Ralph
Cotto. (As noted above, Cotto was a picket captain.) Lugo
testified that at one point after Alex Rosario left the coffee-
shop, Lugo and the others walked outside and saw that Alex
and replacement Jose Rodriguez were calling each other
names and were facing off as if to fight. Lugo states that he
ran over to grab Alex away and that Tommy ran between the
two combatants. According to Lugo, replacement Carlos
Rodriguez went over to Jose’s car, pulled out a tire iron, and
approached the combatants. Lugo states that the next thing
he saw was Carlos Rodriguez and Muniz running around the
block and Jose getting back in his car and driving off. Lugo
denies that either he or anyone else had a knife.
Lugo did not testify regarding the alleged slaps to Jose by
Alex as his testimony was that he was not present when the
initial confrontation occurred. Also, none of the other partici-
pants or witnesses to this event other than Muniz and Lugo
testified. In a criminal proceeding brought against Lugo in
relation to the above, he was found to be not guilty.
Regarding the incident at Electra Lane on September 22,
Robert Delmonico, the Union’s shop steward, testified that
he was at the picket line when a car drove quickly through
the puddle and splashed all the pickets. He says that when
the driver and passengers got out of the car they brandished
a golf club and bats, whereupon everyone on picket line got
mad and started to run at them while they ran into the build-
ing. Delmonico testified that there was a lot of yelling, and
that the pickets ran part way to the building, stopped, and
returned. He says that the event quickly quieted down and
nothing else happened.
Muniz testified that there exists and he saw a video tape
of the car going through the puddle on September 22. How-
ever, that video tape was not offered into evidence and this
suggests thats at least as to what took place at the picket
line, the incident was relatively innocuous.
According to Muniz, he, Jose, and Carlos Rodriguez were
at the Lunchbox on September 28, 1989, when a car pulled
up with striker Nick Pretino and the person who previously
had slapped Carlos Rodriguez. He states that this person
challenged Carlos to fight but that nothing else happened be-
cause Muniz and his group returned to the plant. This inci-
dent was denied by Pretino. Neither Carlos Rodriguez, his
brother Jose, nor the other person testified in this proceeding.
General Counsel’s Exhibit 7 is an item consisting of two
nails welded together to form triangle so that has one point
always sticks up. The General Counsel described it as a ‘‘tire
jack.’’ From its design, it would seem to have no function
other than to cause flat tires when placed in a street. The
General Counsel produced four witnesses (Vogel, Davis,
1271TEAMSTERS LOCAL 812 (SOUND DISTRIBUTING)
5 In his testimony in state court, Lugo said that he did not grab
the driver’s leg. He acknowledged here that that testimony was in-
correct. It is noted that the criminal allegation against Lugo regard-
ing this incident was dismissed.
Honigman, and Perez) who testified not only to seeing these
tire jacks in the road (usually in and around the puddle on
Electra Lane), but also to extracting them from their tires.
The Union’s witnesses for their part denied ever seeing these
items either in the road leading to the plant or anywhere else.
William Davis testified that on October 17, 1989, at about
7:45 a.m., he was leaving the facility in a truck with Patrick
Roberts and a security guard. He states that because he saw
spikes in the puddle he stopped the truck to pick them up.
According to Davis, as he went back to cab, striker Lugo de-
manded the return of the tire jacks and when he refused
Lugo said, ‘‘I’ll kill you, give me them tire jacks, you took
my job.’’ According to Davis, Lugo tried to pull him from
the cab of the truck whereupon striker Coste slammed the
door on his foot. He states that as he did this, Coste said;
‘‘You motherfucker, we’re going to get you.’’ Davis testified
that his foot was injured and had to be treated in a local hos-
pital.
General Counsel’s Exhibit 10 is a video tape which shows
that the incident happened on Electra Lane, by the puddle,
and lasted about 15 seconds. It shows a striker trying to pull
a driver out of the cab and another striker slamming the door
on his foot. Delmonico, the Union’s shop steward, appears
on the tape but was not directly involved in the incident.
Delmonico states that he was present at picket line on Oc-
tober 17 and did not see the incident until it was over. In
Delmonico’s affidavit, he stated that he saw Wilfredo Lugo
and Jose Coste approach the truck but did not see or hear
any violence against the driver.
According to Lugo, he stuck out his tongue and made a
gesture at the truckdriver whereupon the driver got out of the
truck, called him a motherfucker, spic, asshole, and pushed
him so as to cause his coffee to spill. Lugo says that he
pushed the driver back and that they grabbed each other. He
states that a couple of strikers came over and Jose Coste
went to the right side of the truck where there was a helper
and guard. According to Lugo, when the driver went back
to the truck, the driver kicked the door open so that it hit
Lugo whereupon he got mad and tried to grab the driver by
the leg.5 Unfortunately Lugo’s version is not supported by
the tape as there is nothing in the tape which shows the driv-
er opening a door and using it to hit Lugo.
Jose Coste, although called as a witness by the Respond-
ent, was not asked by the Respondent to testify as to the in-
cident on October 17. On cross-examination, he was shown
the video tape and recognized some of the people on the
picket line that day as being himself, Cornell Yarborough,
Joe Escabel, Torto, Scabelli, and Union Agent Terry Hutch-
inson.
Pretino testified about the October 17 incident after being
shown the video tape. He states that he recognized himself
in the tape and that he challenged the driver to come out.
Contrary to Lugo’s version as to how this incident began,
Pretino testified that the driver brandished a bat at him
Pretino and cursed at him. According to Pretino, this is what
provoked him to say something like, ‘‘come on out, lets see
how tough you are.’’
In addition to the alleged incidents described above, the
General Counsel’s witnesses testified to a few other incidents
which were more indeterminate in nature.
George Muniz testified that as he was driving through the
picket line the strikers routinely called him names. After a
leading question, Muniz also testified that on one unspecified
occasion, the unidentified striker who slapped Jose Rodriguez
said to Carlos Rodriguez, ‘‘Why don’t you fight; I’ll kick
your ass.’’
William Davis testified that on unspecified occasions the
pickets threw things or banged on his truck as he passed
through Electra Lane. He could not, however, testify as to
who or what was thrown. Davis testified that the pickets
often called him and the other replacements names such as
scab, etc. He states that the pickets said, ‘‘We’ll get you, you
took our jobs.’’ Davis was not specific as to dates or times,
although saying that this type of conduct took place in the
early stages of the strike. (Presumably in August 1989.)
Vogel testified that on one unknown occasion he heard a
beer bottle thrown at the side of his truck. He states that he
surmised it was a beer bottle because he saw the broken
glass on the ground. He did not see who threw the object
and indicates that the incident took place sometime before
October 1991. Vogel also testified that at various times
(dates unknown) unidentified picketing employees said to
him as he was driving through the line, ‘‘We’re going to get
you; when the dog bites, the dog bites hard.’’ Finally, Vogel
testified that on several occasions, pickets walked in front of
his truck to try to slow him down and that one of the strikers
once mooned him. (Pretino conceded that he did moon some
drivers but denies that he ever walked on the picket line in
such a way as to prevent ingress or egress to the plant.)
III. ANALYSIS
A union obviously will be held liable for the actions of
persons who clearly are its agents such as its officers, orga-
nizers, and business agents. Also, a union normally will be
held liable for the actions of appointed shop stewards and
picket captains if the specific actions alleged fall within the
scope of the normal functions for which they have been dele-
gated responsibility. Teamsters Local 860 (Delta Lines), 229
NLRB 993 (1977); Food & Commercial Workers Local 248
(Milwaukee Independent), 222 NLRB 1023, 1024 (1976).
The more difficult question is to what extent is a union
liable for the actions of striking employees who are not
agents of the union.
In Teamsters Local 860 (Delta Lines), supra at 994 the
Board stated:
In determining whether a union is responsible for the
misconduct of persons engaged in picketing, the Board
applies the ‘‘ordinary law of agency.’’ The Board will
. . . impute the conduct of the union’s pickets to the
union only where it is shown that the union, either ac-
tually or impliedly, authorized the picket’s conduct be-
forehand or ratified the conduct after it occurred. For
example, where an authorized union representative such
as a union official or picket captain participates in pick-
eting misconduct or is present at the time the mis-
conduct occurs, the Board will not hesitate to find that
the union is responsible. Similarly, where the union has
knowledge of its pickets’ misconduct, but fails to take
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
steps ‘‘reasonably calculated’’ to control that mis-
conduct, the Board readily imputes responsibility for
the misconduct to the union. Where, however, pickets
engage in misconduct which has been specifically for-
bidden by the union, and this misconduct is not brought
to the union’s attention, or is of an isolated or non-
recurring nature (so that the union has no opportunity
to prevent it from recurring), the union will not be held
responsible for that misconduct.
As to the actions of persons at a picket line, the Board
will ordinarily hold a union liable for the actions of its pick-
ets where there are repeated outbreaks even if such actions
are taken outside the presence of persons who are union
agents. In Teamsters Local 784 (Coca-Cola Bottling), 160
NLRB 1776, 1779 (1966), the administrative law judge stat-
ed that where a picket line is a scene of repeated outbreaks
‘‘the union which is in charge of the picketing and which
maintains some supervision over it, is responsible for such
repeated misconduct even though it did not direct the wrong-
ful action and even if its responsible leaders did not partici-
pate in the action or even themselves observed it.’’ See also
Avis Rent-A-Car System, 280 NLRB 580 fn. 3 (1986); Team-
sters Local 695 (Yellow Cab), 221 NLRB 647, 653 (1975);
Teamsters Local 860 (Delta Lines), supra.
A union may also be found to be liable for the actions of
nonagent persons who engage in acts away from a picket line
if the conduct is related to the union’s authorized strike ac-
tivity. For example, if a union assigns persons to follow
company trucks and if those persons engage in misconduct,
along the way, that misconduct would be related to the au-
thorized union activity. In a sense, such activity could be
considered as ancillary to a roving picket line and therefore
be governed by the same rules as picket line activity. Thus,
in Teamsters Local 784 (Coca-Cola), supra, the administra-
tive law judge also stated:
When a union dispatches pickets to follow trucks and
the pickets repeatedly engage in violence, the union is
legally responsible for the repeated outbreaks if it takes
no effective action to curb the perpetrators and con-
tinues to dispatch the same individuals on similar picket
duty with similar consequences.
See also Teamsters Local 695 (Yellow Cab), supra.
On the other hand, actions by nonagents away from a
picket line which occur in circumstances not related to au-
thorized union activity will not be the basis of finding union
responsibility. Dover Corp., 211 NLRB 955, 956 (1974).
A union may even be liable for the actions of unidentified
persons if the circumstantial evidence pursuasively shows
that the actions were taken in conjunction with the union’s
picket line activity. In Avis Rent-A-Car System, supra, which
involved an employer’s objections to an election, the Board,
with Member Babson dissenting, stated:
We disagree with the hearing officer’s conclusions that
the Petitioner was not responsible for the misconduct of
the unidentified picket for the damage done to the cars
of two employees . . . and for scattering of roofing
nails on several days during the strike. When a union
authorizes a picket line, ‘‘it is required to retain control
over the picketing.’’ If a union is unwilling or unable
to take the necessary steps to control its pickets, it must
bear the responsibility for the misconduct. . . . The
hearing officer erred in finding that the Petitioner was
not responsible for the misconduct of the unidentified
picket because the Employer failed to identify the pick-
et or show that he acted as the Petitioner’s agent or
with the Petitioner’s approval. A union is responsible
for the acts of its authorized pickets even if not specifi-
cally authorized or indeed specifically forbidden. Nor is
it necessary to establish the identity of the pickets en-
gaging in the misconduct. . . . We find the Union had
an affirmative obligation to control the actions of the
unidentified picket, and cannot escape responsibility by
simply contending that neither Business Agent . . . nor
picket captain . . . were present when the misconduct
occurred.
Viewing the facts of this case in relation to Board law, I
make the following additional conclusions:
1. As described above, it is recommended that those alle-
gations of the complaint which were supported solely by the
prior court testimony or affidavits of Steven Costanza be dis-
missed. These would be the allegations contained in para-
graphs 8(n), (o), (p), (r), and (s) of the complaint.
2. The General Counsel withdrew the allegation contained
in paragraph 8(q) of the complaint.
3. I credit the testimony of those witnesses who testified
that on various occasions in August 1989 and thereafter they
saw spikes in and around Electra Lane, the road which leads
to the plant. These spikes, consisting of two nails welded to-
gether in such a manner as to ensure that a point will meet
a tire, do not, as far as I am aware have any useful function
other than to do damage. As these spikes were found at the
picket line during the course of the strike, I conclude that the
Union violated Section 8(b)(1)(A) in having its people place
these spikes on the road. This conclusion is buttressed by the
decision of Judge Morris (cited above) wherein he found that
this same union contemporaneously engaged in the same
type of conduct at another company.
4. The credited evidence establishes to my satisfaction that
on October 17, 1989, persons engaged in picketing, in the
presence of union agents, assaulted and threatened the driver
of one of the Company’s trucks as he was leaving the facil-
ity. It therefore is concluded that the Union, in this respect,
violated Section 8(b)(1)(A) of the Act.
5. I credit the testimony of those witnesses who stated that
in August 1989 they were followed by strikers who drove
their vehicles so as to impede the Company’s trucks. More-
over, I conclude that they did so in a reckless and dangerous
manner. As the evidence shows that the Union dispatched
strikers to follow the Company’s trucks, it is my opinion that
the Union is liable for their actions engaged in away from
the picket line. Accordingly, in this respect, I conclude that
the Union violated Section 8(b)(1)(A) of the Act.
6. Having credited John Kuehn in relation to the allega-
tions described above in paragraph 5, I shall also credit his
testimony that at the picket line on August 11, 1989, as he
was leaving the plant on a delivery truck, strikers Tim
Mahon and Jose Coste, along with picket captain Ralph
Cotto, blocked the road with their vehicles, banged on the
truck’s windows, and knocked beer barrels off the truck. I
further find that striker Jose Coste, on that occasion, threat-
1273TEAMSTERS LOCAL 812 (SOUND DISTRIBUTING)
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ened to assault the truck’s passengers. In these respects I
conclude that the Union violated Section 8(b)(1)(A) of the
Act.
7. I shall also credit the testimony of Rosando Perez to the
effect that on August 11, 1989, he and the two other Sound
employees were threatened with unspecified reprisals when
they were told, in effect, by three strikers who followed them
on the route that they were going ‘‘to get’’ the replacement
workers.
8. The testimony of Edward Vogel regarding the bb shot
was not sufficient in my opinion to establish that such a shot
was fired against his window. Although I credit him, the
event according to Vogel’s testimony, took place at about 3
a.m. he did not see what happened, and the police officers
who were at the picket line neither saw the incident nor
could find any weapon. While I do not discount the possi-
bility that some type of object was fired at or thrown against
Vogel’s windshield, I do not think that there is enough evi-
dence to warrant the conclusion that such an action was car-
ried out by the Union or its agents.
9. I do not think that the Union should be held liable for
the events that took place at the delicatessen on 241st Street
on the morning of September 22, 1989. George Muniz testi-
fied to a confrontation that was provoked by a person
(apparantly named Alex), who was with some of the strikers.
According to Muniz, this person slapped him across the face
and this led to a more general confrontation between the em-
ployees that he was with and some of the strikers. Although
there was some testimony that a knife was brandished by
strikers Wilfredo Lugo and Larry Williams, Muniz in his
pretrial statement indicated that replacement Carlos
Rodriguez was the first person to pull out a weapon at the
scene. Muniz further testified that Lugo slashed a tire and
that Alex kicked employee Jose Rodriguez twice before the
nonstrikers returned to the plant.
The events described above took place away from the
picket line and did not occur as part of any union activity.
In essence, what took place was a confrontation of strikers
and nonstrikers at a location where each went to get coffee.
None of the strikers were anything more than ordinary pick-
ets and the person who engaged in the alleged assaults was
never identified as a union agent, a striking employee, or
even as a former employee of the Company. Moreover, the
testimony of the General Counsel’s witnesses was that this
person disappeared from the picket line for the next several
months, thereby indicating that the Union did not condone or
approve of his actions.
10. On September 22, when the replacements left the deli-
catessen, they drove back to the plant. On their way through
Electra Lane, they splashed the pickets by driving fast
through the large puddle that tends to accumulate there. (This
was the unfair labor practice allegation against the Company
which was settled.) The splash generated a degree of excite-
ment at the picket line and the strikers loudly approached the
car after it was parked. It seems that one of the occupants
of the car got out brandishing a tire iron whereas the pickets
picked up some clubs of their own. A brief and nonviolent
standoff ensued and the nonstriking employees ran into the
plant. While affording a brief moment of drama, I do not
think that the incident amounts to a violation of Section
8(b)(1)(A) and I shall recommend dismissal of this allega-
tion.
In addition to the above, there was testimony of various
people that the pickets cursed at the replacement workers and
on one occasion, ‘‘mooned’’ them. The use of obscene words
or gestures does not, however, rise to the level of restraint
or coercion as defined in Section 8(b)(1)(A) of the Act.
There also was other testimony of alleged actions by pick-
ets that was more vague than what was described above. For
example, William Davis testified that on unspecified occa-
sions, unidentified strikers threw ‘‘things’’ or banged on his
truck as he passed through Electra Lane. He also testified
that on unspecified dates he was told by unidentified strikers
that, ‘‘We’ll get you, you took our jobs.’’ Vogel also testi-
fied in vague fashion to an alleged incident when a bottle
was thrown against the side of his truck and to similar
threats as alleged by Davis.
In my opinion I do not need to determine whether the inci-
dents described above by Davis and Vogel constituted viola-
tions of the Act. Assuming that they were, they would add
nothing to this case and would not in any manner alter the
remedy that will be recommended. By the same token, the
overall outcome of this case will in no way be affected by
a dismissal of these particular allegations.
CONCLUSIONS OF LAW
1. By placing spikes on the road outside the premises of
Sound Distributing Corp., the Union has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) of
the Act.
2. By assaulting, by threatening to assault, and by threat-
ening employees with other reprisals, the Union has violated
Section 8(b)(1)(A) of the Act.
3. By following trucks driven by the Company’s employ-
ees and by driving vehicles in a reckless and dangerous man-
ner, the Union has violated Section 8(b)(1)(A) of the Act.
4. By blocking ingress or egress to the Company’s prem-
ises, and by blocking the Company’s trucks as they at-
tempted to make deliveries, the Union has violated Section
8(b)(1)(A) of the Act.
5. By banging on and throwing merchandise off the Com-
pany’s trucks, the Union has violated Section 8(b)(1)(A) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Soft Drink Workers Union Local 812,
International Brotherhood of Teamsters, AFL–CIO, Scars-
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
dale, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Placing spikes or other similar objects on the road out-
side the premises of Sound Distributing Corp.
(b) Assaulting, threatening to assault, or threatening em-
ployees with other reprisals.
(c) Following trucks driven by the Company’s employees
and driving vehicles in a reckless and dangerous manner so
as to endanger the Company’s employees.
(d) Blocking ingress or egress to the Company’s premises,
and blocking the Company’s trucks as they attempt to make
deliveries.
(e) Banging on and throwing merchandise off the Com-
pany’s trucks.
(f) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its union office in New York, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 2 after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Sound Distributing Corp., if
willing, at all places where notices to employees are custom-
arily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT place spikes or other similar objects on the
road outside the premises of Sound Distributing Corp.
WE WILL NOT assault, threaten to assault, or threaten em-
ployees with other reprisals.
WE WILL NOT follow trucks driven by the Company’s em-
ployees and drive vehicles in a reckless and dangerous man-
ner so as to endanger the Company’s employees.
WE WILL NOT block ingress or egress to the Company’s
premises, or block the Company’s trucks as they attempt to
make deliveries.
WE WILL NOT bang on or throw merchandise off the Com-
pany’s trucks.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
SOFT DRINK WORKERS UNION LOCAL 812,
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, AFL–CIO